State v. Williams-Rusch

• Decision Date: 25 November 1996
• Docket Number: No. 94-240,D,WILLIAMS-RUSC,94-240
• Parties: STATE of Montana, Plaintiff and Respondent, v. Ronda K.efendant and Appellant.
• Court: Montana Supreme Court

Page 169

928 P.2d 169

279 Mont. 437

STATE of Montana, Plaintiff and Respondent, v. Ronda K. WILLIAMS-RUSCH, Defendant and Appellant.

No. 94-240.

Supreme Court of Montana.

Submitted on Briefs March 7, 1996.

Decided November 25, 1996.

Amy N. Guth, Public Defender's Office, Libby, for Defendant and Appellant.

Joseph P. Mazurek, Attorney General, John Paulson, Assistant Attorney General, Helena, Charles Sprinkle, Lincoln County Attorney, Libby, for Plaintiff and Respondent.

NELSON, Justice.

Following a jury trial in the Nineteenth Judicial District Court, Lincoln County, appellant Ronda K. Williams-Rusch (Ronda) was acquitted of the offense of conspiracy, a felony, and convicted of tampering with a witness or informant, a felony. We affirm.

Ronda raises the following issues on appeal:

1. Did the District Court err in failing to dismiss the prosecution on the grounds of outrageous government conduct?

2. Did the District Court err in allowing the State to prosecute Ronda for witness tampering?

3. Did the District Court err in failing to dismiss the prosecution on the grounds of denial of a speedy trial?

4. Did the District Court have subject matter jurisdiction over the offense of witness tampering?

Factual and Procedural Background

On August 16, 1992, two law enforcement officers with the U.S. Forest Service came across a campsite near the Fisher River in the Kootenai National Forest about 15 miles from Libby. No one was at the campsite at the time. Next to a trailer in the camp the officers observed some bags of potting soil and several cardboard boxes containing 15 to 20 small plants growing in styrofoam cups. The officers obtained a leaf from one of the plants which later tested positive as marijuana.

Over the next three days, officers from the Lincoln County Sheriff's Office and the U.S. Forest Service conducted a surveillance of the campsite, which was occupied by Ronda, her husband, Mike Rusch, her boyfriend, Randell Nealy, and her nine-year-old daughter, Tracy Rusch. On August 20, 1992, the Justice of the Peace issued a warrant to search the campsite and seize all marijuana plants and seeds, drug paraphernalia, records of drug transactions, and cash. That same day, as officers from the Sheriff's Office conducted a search, they discovered approximately 50 marijuana plants growing a short distance from the campsite. The officers arrested Ronda and her two male companions and transported them to the Lincoln County detention facility. Ronda's daughter, Tracy, was placed in the care of child protective services. The officers confiscated all of the items located at the campsite including several videotapes. Some of these items were marked as evidence and others were held for safekeeping.

The day after Ronda's arrest and the seizure of items from the campsite, Officer Klint Gassett (Gassett) played the videotapes on the VCR in his office. The Chief of Detectives had instructed Gassett to view the tapes to determine if they had any evidentiary value. However, instead of depicting drug transactions, the tapes showed Ronda engaging in sexual acts with Nealy. The television on which Gassett viewed the tapes is mounted on a wall facing the door of the office he shares with several other officers. Several officers and others entered the room at various times during the viewing of the videotapes and saw all or part of the tapes.

That same afternoon, Gassett removed Ronda from her cell to interview her. Gassett accompanied Ronda to the squad room which is the only area in the Sheriff's Office where smoking is permitted. He advised Ronda that if she needed to smoke she could request to speak to him and he would escort her to the squad room. Ronda later alleged that during this and other later interviews, Gassett made suggestive comments to her about her performance on the videotapes. At the time of the first interview, Ronda had not yet made an initial appearance. She appeared before the Justice of the Peace later that afternoon, at which time counsel was appointed to represent her. Bail was set at $50,000.

On August 24, 1992, Ronda waived her right to a preliminary hearing and requested that the District Court release her upon her own recognizance. Ronda was released from jail the following day. On August 26, 1992, the State formally charged Ronda by information with one count of criminal possession with intent to sell, a felony, in violation of § 45-9-103, MCA. She was arraigned on this charge on August 31, 1992, and pleaded not guilty.

On August 27, 1992, Ronda appeared before the District Court and requested the Sheriff's Office return her personal property. The court so ordered and the following day, Ronda supplied the Sheriff's Office with a list of the personal property that she sought returned. The list included a notation for "tapes-musical & video."

Ronda's tapes were not returned as ordered, so on September 1, 1992, she requested that the District Court direct an order to the State to show cause why her personal property had not been returned to her. Ronda appeared in District Court the next day and again requested that her personal property be returned. The court ordered that Ronda's personal property be delivered to her residence by 11:00 a.m. the following day. Not only were the videotapes not returned to Ronda on the date and time specified by the court, but the videotapes were instead shown that same day to several detectives from Seattle, Washington, who had arrived in Libby to interview Michael Rusch. The same day the tapes were to be returned, the Lincoln County Sheriff's Office arrested Ronda on a warrant from Oregon and incarcerated her in the Lincoln County jail.

On September 10, 1992, the Lincoln County Attorney directed Officer Gassett to make copies of the videotapes. The following day, after receiving an order from the District Court requiring that the Sheriff's Office release all of Ronda's personal property to Ronda's sister and to release the videotapes to Ronda's attorney, two officers attempted to locate the tapes in the evidence locker, but they were unsuccessful. The videotapes were later located at Gassett's home and delivered to Ronda's attorney.

On September 14, 1992, Ronda moved the District Court to order the release of any copies of the videotapes. The court so ordered, however, the Sheriff's Office responded that it had been unsuccessful in its attempts to make copies of the videotapes, thus no copies were in existence.

Ronda was extradited to Oregon to face charges there on September 16, 1992. On October 5, 1992, Ronda moved to dismiss the Montana action on the grounds of outrageous government conduct in the seizure, use and possession by the State of the sexually explicit videotapes and the sexual harassment of her by State employees. She later moved to continue the hearing on this motion because she was still incarcerated in Oregon.

On November 18, 1992, the State moved to amend the information to include the alternative offense of conspiracy, a felony, in violation of §§ 45-9-101 and 45-4-102, MCA, and to add a charge of tampering with witnesses or informants, a felony, in violation of § 45-7-206, MCA. The State filed a new complaint in Justice Court charging Ronda with witness tampering and bond was set at $10,000. A November 23, 1992 hearing on the motion to amend the information was continued until Ronda could be personally present.

Ronda returned to Montana on April 26, 1993, her Oregon charges having been settled, and the District Court released her on her own recognizance. On May 12, 1993, the court held a hearing on Ronda's motion to dismiss for outrageous government conduct and granted the State's motion to amend the information.

Ronda was arraigned on the charges in the amended information on June 10, 1993, and pleaded not guilty. On July 12, 1993, the District Court conducted an omnibus hearing and set trial in this matter for January 11, 1994. On July 19, 1993, Ronda moved to suppress her August 21, 1992 statement on the grounds that Gassett's actions in eliciting the statement deprived her of a speedy initial appearance and her right to counsel. A few weeks later, Ronda also moved to suppress evidence seized in the search of the campsite on the grounds the search was oppressive and overly broad.

On January 3, 1994, Ronda moved to dismiss the information on the grounds that the State had violated her right to a speedy trial. Two days later, the State moved to continue the trial due to its failure to secure the presence of out-of-state witnesses. The District Court reset the trial for February 14, 1994.

On the day set for trial, the District Court granted Ronda's motions to suppress her statement and certain items of evidence and denied her motion to dismiss on the grounds of outrageous government conduct. Following a 3-day trial and the dismissal of the charge of criminal possession with intent to sell, the jury found Ronda not guilty of the alternative charge of conspiracy and found her guilty of tampering with a witness. Ronda filed a motion for a judgment notwithstanding the verdict on the grounds that her right to a speedy trial had been denied. The motion was deemed to be a motion for a new trial and denied by the District Court. On March 29, 1994, the court sentenced Ronda to ten years in prison, all of which was suspended, and placed her on probation.

Ronda now appeals the denial of her motion to dismiss on the grounds of outrageous government conduct, the denial of her motion to dismiss for lack of sufficient evidence to prove the charge of witness tampering, and the denial of her motion to dismiss for lack of a speedy trial.

Issue 1.

Did the District Court err in failing to dismiss the prosecution on the grounds of outrageous government conduct?

Ronda claims that as a consequence of this prosecution, she was subjected by government agents to a violation of her right to counsel, her right to remain silent, her right to be...